My own approach to legal mediation
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The “Law” Man
By HHJ Columnist Jim Rockefeller
Dear Readers,
I have addressed the concept of mediation, but without explicitly discussing how to prepare for it. The whole idea of mediation is to take completely opposed positions and try to find enough common ground to make a deal possible. This means that the bitterness of the dispute needs to be drained by negotiation. You kind of wish you could apply to other facets of our lives, like maybe our various state, local and national governments!
There is no specific time for a mediation to occur. For instance, some custody orders require that if the parents cannot agree on education, religious, medical, or other such matters, they will take their disagreements to mediation before filing any type of lawsuit. Generally, though, mediation occurs after a lawsuit is filed, after exchanges of factual information, but before a final hearing or jury trial. It is completely “extra-judicial,” without any judicial involvement.
Probably, the more prominent use of mediation occurs in family law cases, where the parties are almost always required to submit to mediation, before the case can head to trial. This may be true in other types of litigation, like automobile wrecks or commercial litigation, but it is not as uniformly required as in family law cases.
There are different approaches to mediation. Some attorneys seem to put almost no effort into preparing their clients (or the other side) for mediation, figuring the process is organic and preparation only messes with the chances of settlement. I take another position. I am not so concerned with the case settling, as I am in making sure my clients are ultimately satisfied with any settlement reached. I draw this distinction because mediation is generally a very draining experience and many times, I think, the parties reach an agreement simply out of mutual exhaustion. Hence, in the light of the next morning, there may be “buyer’s remorse” over the settlement reached, but any agreement signed at mediation is binding and once you agree, you are stuck with the agreement.
To prepare my clients for mediation, I like to sit down with them and discuss what to expect. This may seem pretty basic, but I am shocked at the number of attorneys that don’t do this. “Expectation” is not just to explain what goes on at mediation, but also to discuss the issues and their merits.
For instance, if the case is about custody, I will want to discuss the different permutations of custody and visitation and what the other party might want. Or, if the case is an auto wreck case, I’d want to review with my client a plausible settlement; this way, going into a mediation, my client would have some figures to mull over, before being pinned down on what he or she would actually be willing to accept. The idea is to go over the strengths and weaknesses of our case and the opposing party and have a “game plan” plotted out before we start negotiating.
Frankly, it is pretty easy to execute a game plan in mediation, particularly, if money is involved. Generally, the parties are together in mediation for only a brief period of time. This leaves for lots of time to scheme when in a separate room, while the mediator is carrying my client’s offer to the other party. This allows you and your client to slowly guide exchanges of offers in a pre-anticipated direction.
Ultimately, I have found meditations conducted this way to be a relatively cheap and effective means for my clients to settle a dispute.
Local attorney Jim Rockefeller owns the Rockefeller Law Center and is a former Houston Co. Chief Assistant District Attorney, and a former Miami Prosecutor. Visit www.rockefellerlawcenter.com to submit confidential legal questions, and to review former articles and Frequently Asked Questions.
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